Actor Assault Case : Kerala High Court Allows State To Summon 5 New Witnesses; Rejects Plea To Recall 3 Witnesses

The Kerala High Court on Monday partly allowed the application filed by the State government challenging the trial court's order in the sensational actress sexual case that involves Malayalam actor Dileep, which had rejected the prayer to re-examine certain witnesses and summon additional witnesses.

The prosecution had sought before the trial court to re-examine 6 witnesses, 1 witness cited but not examined and 9 additional witnesses who were not cited as witnesses in the final report.

The trial court allowed the State to recall only 3 out of the 6 witnesses and summon 1 out of the 9 additional witnesses. The prayers to examine all the remaining witnesses were disallowed.  Aggrieved by this, the prosecution had moved the Court.  Ed

Justice Kauser Edappagath set aside the trial court's order to the extent it rejected the summoning of 5 additional witnesses:

"The order impugned in Crl.M.C.No.6702/2021 to the extent rejecting summoning of five additional witnesses viz., Smt.Nileesha, Sri.Kannadasan, Sri.Suresh D, Smt.Usha and Sri. Sathyamoorthy (CW240) is set aside. The prayer to examine these witnesses stands allowed.The entire exercise of adducing additional evidence allowed as per this order shall be completed within ten days from the date of the receipt of the copy of this order by the Court below. "

Additionally, the Director-General of Prosecution T.A. Shaji was asked to see that a new Special Public Prosecutor was deputed or some other alternative arrangement was made to conduct the case on behalf of the prosecution and ensure that the examination of the witnesses and production of the documents as allowed as per the order is done within ten days.

The Court also directed the accused to co-operate to complete the additional evidence within this period.

However, the request regarding recalling of the three witnesses was rejected by the Judge as such: 

"There is absolutely no explanation about the long delay. No cogent or sufficient reason has been stated for their reexamination. The general statement that the entire facts could not be brought out when they were examined cannot be construed as a valid or sufficient reason to recall and reexamine them. Their examination was done by a Special Public Prosecutor in the presence of the investigating officer. All of them supported the prosecution. Recalling and reexamination of a witness cannot be done to fill up lacuna or to cover up the defect or to rectify the mistake crept in evidence...The Court below rightly rejected the prayer for recalling PWs43, 69 and 73. No interference is called for on the said finding of the Court below."

Senior Advocate B.Raman Pillai appearing for the respondents had submitted that the Court below had rightly rejected the Prosecution's request to summon the witnesses and to produce the documents as it was found to be an attempt to fill up the lacuna and to prolong the proceedings. 

He had argued that issuing summons to the remaining witnesses will cause serious prejudice to the accused and none of those witnesses even remotely appear to be essential for a just decision of the case. 

On January 13, 2022, the State government had constituted a new team to investigate the case. Reportedly, Additional Director General of Police Sreejith will now head the team and Inspector General of Crime Branch KP Philip will also be part of it. Deputy Superintendent of Police Baiju Paulose will continue as the investigation officer. 

The new team has been constituted after senior police official B Sandhya, who was heading the case before, took over as the head of the Kerala Fire Force. The new team has been entrusted with collecting evidence for the statements of film director Balachandra Kumar.

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Earlier this month, Balachandra Kumar had released audio recordings of people including actor Dileep trying to sabotage the case and obstruct the trial. He had raised several allegations pertaining to the case, one of the prominent ones being that Dileep had seen the visuals of the assault before it was produced before the court, despite being an accused in the case.

The director had added that he detected a close association between Dileep and the main accused in the case, Pulsar Suni.

Previously, the survivor had also penned a letter to Chief Minister Pinarayi Vijayan after Balachandrakumar's revelations came out. Stating that his allegations should be looked into, she also pointed out that the Special Public Prosecutor in the case, VN Anilkumar quit, protesting the attitude of the trial court judge Honey Varghese. Therefore, she had asked the Chief Minister to appoint an SPP at the earliest.

Dileep was accused of hatching the criminal conspiracy behind the abduction and the sexual assault of the victim, also an actor, in a moving vehicle in the outskirts of Cochin city in February 2017.

In November 2019, the Supreme Court had rejected Dileep's plea for a copy of the memory card allegedly containing the visuals of the sexual crime, ordering that the trial in the case should be completed expeditiously, "preferably within six months".

The Kerala Police had arrested Dileep in July 2017 alleging that he was the mastermind of the crime. After 88 days of custody, the High Court granted him bail.

The trial in the case was finally nearing completion after five long years. But on 5th January, the State government moved the Supreme Court seeking an extension of the trial by six months after Balachandrakumar raised the aforementioned allegations against Dileep.

The actor has also moved the High Court recently seeking anticipatory bail in the new case registered by the Kerala Police, where he has been booked for conspiring to kill police officers investigating the sexual assault case. This matter will be heard tomorrow. 

Case Title: State of Kerala v. Sunil N.S @ Pulsar Suni

Citation: 2022 LiveLaw (Ker) 26

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